Days Corporation v. Lippert Components Inc

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF INDIANA

SOUTH BEND DIVISION

DAYS CORPORATION, )

)

Plaintiff, )

)

vs. ) CAUSE NO. 3:17CV208-PPS /MGG

)

LIPPERT COMPONENTS, INC. and )

INNOVATIVE DESIGN )

SOLUTIONS, INC. )

)

Defendants. )

consolidated with

INNOVATIVE DESIGN )

SOLUTIONS, INC., )

)

Plaintiff, )

)

vs. ) CAUSE NO. 3:17CV327-PPS/MGG

)

DAYS CORPORATION, )

)

Defendant. )

OPINION AND ORDER

In these consolidated cases, rival manufacturers square off concerning their

leveling systems for use on recreational vehicles, motorhomes, trailers, and other

structures often parked on uneven ground. Days Corporation has a patent (No.

6,619,693 or the ’693 patent) for an Apparatus and Method for Automatically Leveling

an Object. Innovative Design Solutions, Inc. and/or Lippert Components, Inc. hold two

similar patents: the first is Patent No. 6,584,385 (or the ’385 patent) for a Vehicle

Leveling Assembly, and the second is Patent No. 6,885,924 (or the ’924 patent) for a

Vehicle Attitude Adjustment Assembly. The ownership of defendants’ patents is

currently in dispute. But we can set that issue to the side for the time being because the

issue now before me is claims construction. There are a number of claims from all three

patents that need to be construed.

I held a Markman hearing to flesh out the various issues in dispute. That moniker

comes the seminal U.S. Supreme Court decision Markman v. Westview Instruments, Inc.,

517 U.S. 370 (1996) where the court observed that the rights of a patentholder to exclude

others from making, using or selling the patented invention are granted in exchange for

the “full disclosure” of the invention. This means that “a patent must describe the exact

scope of an invention and its manufacture to ‘secure to [the patentee] all to which he is

entitled, [and] to apprise the public of what is still open to them.’” Id. at 373, quoting

McClain v. Ortmayer, 141 U.S. 419, 424 (1891). These requirements are met by the

“specification” of the patent, which describes the invention “in such full, clear, concise,

and exact terms as to enable any person skilled in the art…to make and use the same,”

and by the patent’s “claims,” which “particularly poin[t] out and distinctly clai[m] the

subject matter which the applicant regards as his invention.” 35 U.S.C. §112(b).

The claims of a patent define the patent’s scope. Markman, 517 U.S. at 373.

Someone bringing an allegation of infringement must show that a patent’s claim

“’covers the alleged infringer’s product or process,’ which in turn necessitates a

determination of ‘what the words in the claim mean.’” Id. at 374, quoting H. Schwartz,

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Patent Law and Practice 1, 80 (2d ed. 1995). The two steps of an infringement analysis

are therefore: (1) “determining the meaning and scope of the patent claims asserted to

be infringed,” and (2) “comparing the properly construed claims to the device accused

of infringing.” Markman v. Westview Instruments, Inc., 52 F.3d 967, 976 (Fed. Cir. 1995).

See also Innova/Pure Water, Inc. v. Safari Water Filtration Sys., Inc., 381 F.3d 1111, 1115

(Fed. Cir. 2004).

Step one -- claims construction -- is a matter for the court. What this means is that

where the meaning of claim terms is disputed, the court resolves the dispute to “clarify

and explain what the claims cover.” Baxter Int’l, Inc. v. CareFusion Corp., 2019 WL

1897063, at *1 (N.D. Ill. Apr. 29, 2019), citing Terlep v. Brinkmann Corp., 418 F.3d 1379,

1382 (Fed. Cir. 2005). See also Markman, 517 U.S. at 373. “Claim construction seeks to

ascribe the ‘ordinary and customary meaning’ to claim terms as a person of ordinary

skill in the art would have understood them at the time of invention.” Sumitomo

Dainippon Pharma Co., v. Emcure Pharm. Ltd., 887 F.3d 1153, 1157 (Fed. Cir. 2018). “As a

general rule, the ordinary and customary meaning controls unless ‘a patentee sets out a

definition and acts as his own lexicographer, or … the patentee disavows the full scope

of a claim term either in the specification or during prosecution.’” Id, quoting Thorner v.

Sony Comput. Entm’t Am. LLC, 669 F.3d 1362, 1365 (Fed. Cir. 2012).

As the Federal Circuit teaches in Sumitomo, “[t]he plain claim language marks the

starting point for our analysis.” 887 F.3d at 1157. But applying the understanding of a

person of ordinary skill in the art requires consideration of the disputed term “not only

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in the context of the particular claim in which the disputed term appears, but in the

context of the entire patent, including the specification.” Phillips v. AWH Corp., 415 F.3d

1303, 1313 (Fed. Cir. 2005). “[T]he context in which a term is used in the asserted claim

can be highly instructive.” Phillips, 415 F.3d at 1314. The specification is “always highly

relevant to the claim construction analysis,” and is usually dispositive as “it is the single

best guide to the meaning of a disputed term.” Vitronics Corp. v. Conceptronic, Inc., 90

F.3d 1576, 1582. (Fed. Cir. 1996). See also Phillips, 415 F.3d at 1315.

Claim to be Construed in the Days ‘693 Patent

There is only one disputed claim term in Days’ ‘693 patent, namely “reference

level plane” as used in Claims 12 and 13. To see the disputed language in its context, I

will highlight the claim term within the full text of Claims 12 and 13. Reviewing these

claims in their entirety also offers a helpful snapshot of how the leveling systems

generally work.

12. An apparatus for automatically leveling a vehicle, comprising:

a plurality of legs each of which is mounted to the vehicle;

wherein each of the legs is movable between a retracted stowed position and an

extended use position; and

wherein each of the legs is moved to the retracted stowed position to allow the

vehicle to travel and each of the legs is moved to the extended use position to engage a

ground surface prior to leveling the vehicle;

a sensor mounted to the vehicle to sense pitch and roll of the vehicle relative to a

reference level plane;

wherein the sensor produces an orientation signal representing the vehicle pitch

and roll; and

a controller coupled to each [of] the legs and the sensor;

wherein the controller monitors the orientation signal received from the sensor

and in response to that signal the controller causes at least one of the legs to both extend

to move the vehicle upwardly and retract to move the vehicle downwardly relative to

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the ground surface, until the orientation of the vehicle reaches the reference level plane

within a tolerance.

13. An apparatus for automatically leveling a vehicle, comprising:

a plurality of legs each of which is mounted to the vehicle;

wherein each of the legs is movable between a retracted stowed position and an

extended use position; and

wherein each of the legs is moved to the retracted stowed position to allow the

vehicle to travel and each of the legs is moved to the extended use position to engage a

ground surface prior to leveling the vehicle;

a sensor mounted to the vehicle to sense pitch and roll of the vehicle relative to a

reference level plane;

wherein the sensor produces an orientation signal representing the vehicle pitch

and roll; and

a controller coupled to each of the legs and the sensor;

wherein the controller monitors the orientation signal received from the sensor

and in response to that signal the controller causes at least one of the legs to move the

vehicle relative to the ground surface until the orientation of the vehicle reaches the

reference level plane within a tolerance; and

wherein the controller includes a memory for storing data corresponding to the

reference level plane and is configured to write data representing an orientation signal

to the memory to replace the reference level plane data with orientation signal data.

Days’ contention is that “reference level plane” should be interpreted as “a plane

chosen by the user as level.” Lippert, by contrast, advocates for the following

construction: “a reference plane that extends through the mounting locations of the four

legs on the vehicle frame where the interior of the vehicle is at true level relative to the

horizontal.” The dispute sets up a contrast between a subjective and flexible definition

(Days’) and a fixed objective definition (Lippert’s). Lippert argues that, to have any

meaning, “reference level plane” needs to be defined by a geometric relationship to the

vehicle. But this is so only if the concept must necessarily be a fixed plane determinable

from prescribed points. The specification instead suggests that a “reference level plane”

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is a user-determined plane set as the reference for determining when “level” is achieved

by the system.

Both parties point to the specification’s explanation that “the reference level

plane generally corresponds to a vehicle orientation which results in the interior of the

vehicle feeling at true level relative to the horizontal.” ‘693 patent, col. 7, ll. 35-38. The

specification also indicates that when the vehicle “is in the reference level plane…or a

plane which is parallel to the plane…[the] vehicle 10 is preferably at true level.” ‘693

patent, col. 7, ll. 64-66. The qualifiers “generally,” “feeling at” and “preferably” support

Days’ subjective reading of “reference level plane.” The initial setting of the reference

level plane is recommended to be “as close to true level as possible.” ‘693 patent, col. 10,

ll. 11-12. The specification also describes how the reference level plane can be

recalibrated or reset by the operator to account for heavy loads, “such that the vehicle

feels or measures level from the inside of the vehicle.” ‘693 patent, col. 10, ll. 19-20

(emphasis added). The setting of the reference level plane is accomplished manually by

an operator according to his or her preference.

I understand the presumption that for most contemplated usages, having the

vehicle interior at roughly true level will be desired. But I see no basis for a construction

of “reference level plane” that would limit the term to “true level” as Lippert argues. I

also find persuasive Days’ observation that Lippert’s construction links the plane to

“the four legs on the vehicle frame” when Claims 12 and 13 prescribe only “a plurality

of legs,” which, as the parties agree [DE 57 at 3], simply means “more than one.”

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Finally, I note that the use of the indefinite article “a” in the term “a reference level

plane” supports Days’ more flexible interpretation. If “reference level plane” is

understood as Lippert proposes, then it is a fixed concept of true level measured

through the plane of the legs. Being a fixed measure, it would properly be referred to as

“the reference level plane” because it is always the same.

I therefore construe “reference level plane” in Claims 12 and 13 of the ‘693 patent

to mean “a plane chosen by the user as level,” as contended by Days. This interpretation

is supported by the plain language, which uses the indefinite article “a” and makes no

reference to an absolute or objective standard of “true level.” Instead, the specification

speaks to a flexible reference level plane capable of being set and recalibrated by the

operator to his or her preference, whether or not to true level for the vehicle’s interior.

Claims to be Construed in the Lippert ‘385 Patent

There are seven claims to be construed from the Lippert ‘385 Patent. In

addition, one of the claim terms -- the term “zero mode” -- is included in both the ‘385

and the ‘924 patents. I will take up each of these claim terms next.

1. “Located Anywhere in the Structure”

The term “located anywhere in the structure” is part of Claim 1 of Lippert’s ‘385

patent. Days argues that the phrase is invalid for indefiniteness and for lack of

enablement. Nautilus, Inc. v. Biosig Instruments, Inc., 572 U.S. 898 (2014). Lippert’s

position is that “located anywhere in the structure” means what its plain language

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suggests, and no claim construction is required. Here is how it reads in the context of

the claim:

1. An assembly for correcting the attitude of any selected portion of structure, the

assembly comprising:

a controller configured to connect to and control one or more jacks operable to

change the attitude of a structure; and

a proportional two-axis tilt sensor connected to the controller and configured to

be supported on the structure, the tilt sensor being configured to provide analog signals

to the controller, which represent the degree of longitudinal pitch and lateral roll of the

portion of the structure the sensor is supported on, the controller being additionally

configured to move a selected portion of the structure into a desired attitude by

commanding movement of the entire structure into an attitude where the tilt sensor

signals match a preselected reference value corresponding to the desired attitude of the

selected portion of the structure, thereby allowing any portion of the structure to be

corrected to any desired attitude within a range of attitudes despite the location of the

tilt sensor and allowing the tilt sensor to be located anywhere in the structure.

Because 35 U.S.C. §112 requires a patent holder to “particularly” and “distinctly”

disclose the subject matter that is the patented invention, a claim can be challenged for

lacking specificity. “A claim is invalid for indefiniteness if its language, when read in

light of the specification and the prosecution history, ‘fail[s] to inform, with reasonable

certainty, those skilled in the art about the scope of the invention.’” Biosig Instruments,

Inc. v. Nautilus, Inc., 783 F.3d 1374, 1377 (Fed. Cir. 2015), quoting Nautilus, Inc. v. Biosig

Instruments, Inc., 572 U.S. 898, 901 (2014).

Because under 35 U.S.C. §282, a patent is presumed to be valid, a challenge on

invalidity grounds must be proved by clear and convincing evidence. Biosig, 783 F.3d at

1377. Days argues indefiniteness without any evidence supporting the conclusion that

one skilled in the art would not reasonably understand that this invention allows the tilt

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sensor to be “located anywhere in the structure.” I’m at a loss to understand what is

indefinite about this. And just saying that a phrase is indefinite, as Days claims, does

not make it so.

For starters, the specification of the ‘385 patent explains that: “The tilt sensor 32 is

connected to the controller 30 and may be mounted at any point on a vehicle to be

leveled.” ‘385 patent, col. 8, ll. 8-9. After explaining the function of the sensor and the

controller to which the sensor sends signals describing the structure’s pitch and roll, the

specification also provides that “a motor vehicle leveler constructed according to the

invention allows a user or installer to determine which portion of the vehicle will be

level relative to gravity despite the location of the tilt sensor 32,” so that the sensor

“may, therefore, be located anywhere in the vehicle.” ‘385 patent, col. 8, ll. 15-20. Earlier

in Claim 1 than the challenged language, the sensor is said to be “supported on the

structure,” and to provide signals of the pitch and roll “of the portion of the structure

the sensor is supported on.” ‘385 patent, col. 17, ll. 10-14. The assembly described in

Claim 1 is able to “allow[] any portion of the structure to be corrected to any desired

attitude within a range of attitudes despite the location of the tilt sensor.” ‘385 patent,

col. 17, ll. 21-23.

As I said at the Markman hearing, “located anywhere in the structure” is broad,

but I am not persuaded that it can be called “indefinite.” The term does not describe an

indefinite measure, as has sometimes (but not always) been found to be indefinite for

patent purposes. See Biosig, 783 F.3d at 1382-83 (finding the “spaced relationship”

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between electrodes sufficiently definite). Days relies on Dow Chem. Co. v. Nova Chemicals

Corp. (Canada), 803 F.3d 620, 635 (Fed. Cir. 2015), arguing that “located anywhere in the

structure” lacks “objective boundaries.” [DE 59 at 14.] To the contrary, the boundary set

by the disputed term is within the structure. That any number of locations within the

structure might be within the claim -- if the placement of the sensor can achieve the

other elements of the claim -- does not render the claim indefinite, but merely broad as

to the parameter of location. The Federal Circuit has several times underscored that

breadth is not the same as indefiniteness. BASF Corp. v. Johnson Matthey Inc., 875 F.3d

1360, 1367 (Fed. Cir. 2017); SmithKline Beechham Corp. v. Apotex Corp., 403 F.3d 1331, 1341

(Fed. Cir. 2005).

The context in Dow Chemical was a patent for a type of plastic, and the indefinite

terminology was “the slope of strain hardening.” 803 F.3d at 624. The Federal Circuit

noted that the degree of uncertainty tolerated under the definiteness requirement for

patents is narrower “where different approaches to measurement are involved.” Id. at

630. Because there were four possible methods for calculating the slope, each producing

different results, and no guidance in the patent or the prosecution history as to which

should be used, the claims containing the disputed term were found to be indefinite. Id.

at 634-35. See also Teva Pharm. USA, Inc. v. Sandoz, Inc., 789 F.3d 1335, 1338, 1341 (Fed.

Cir. 2015) (involving three possible measures for “molecular weight”). Unlike Dow

Chemical and Teva, the disputed term “located anywhere in the structure” does not

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prescribe a measurement or computation as to which reasonable precision or exactness

is required in order to understand what is claimed.

Particularly in view of the specification’s detailed description of preferred

embodiments in which the tilt sensor and its function is described as I set out earlier,

the claim for a tilt sensor meeting the half-dozen other criteria of Claim 1 but located

anywhere in the structure is sufficient to enable a skilled artisan to understand with

reasonable certainty the scope of the invention. The claim term “located anywhere in

the structure” is not void for indefiniteness.

I’ll now consider the issue of enablement. “Under the enablement requirement,

‘the specification of a patent must teach those skilled in the art how to make and use the

full scope of the claimed invention without undue experimentation.’” Amgen Inc. v.

Sanofi, 872 F.3d 1367, 1375 (Fed. Cir. 2017), quoting Genentech, Inc. v. Novo Nordisk A/S,

108 F.3d 1361, 1365 (Fed. Cir. 1997). Like indefiniteness, lack of enablement is an

invalidity contention that “must be shown by clear and convincing evidence.” Trustees

of Bos. Univ. v. Everlight Elecs. Co., 896 F.3d 1357, 1361 (Fed. Cir. 2018).

To satisfy enablement, the specification is not required to “expressly spell out

every possible iteration of every claim.” Trustees of Bos. Univ., 896 F.3d at 1364 (finding

that “epitaxially growing a monocrystalline layer directly on an amorphous layer

would have required undue experimentation”). Especially for patents such as the ‘385

patent “in the mechanical or electrical arts, a single embodiment provides broad

enablement because once imagined, other embodiments may be fashioned without

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undue experimentation.” Penda Corp. v. United States, 29 Fed. Cl. 533, 556 (1993). This is

because the mechanical and electrical arts involve “predictable factors,” unlike “arts

involving unpredictable factors, such as chemistry and physiology,” where the

“requisite scope of enablement varies inversely with the degree of unpredictability of

the factors involved.” Id. The court in Penda Corp. observed that the design of pallets

involves largely predictable factors, so that the disclosure of one embodiment was

adequate to enable a claim that did not teach certain particulars about the design of a

pallet “having fused portions in the leg sidewall.” Id. at 556-557.

Claim 1 specifies that the controller is “configured to connect to…one or more

jacks” but does not otherwise specify the location of the controller within the structure.

‘385 patent, col. 17, ll. 6-7. As to the tilt sensor, Claim 1 states that although the tilt

sensor is “connected to the controller and configured to be supported on the structure,”

the tilt sensor can “be located anywhere in the structure” and still perform its role to

detect the structure’s tilt, and to convey signals representing that pitch and roll to the

controller. The description of the sensor’s function in Claim 1 and in the specification

are not shown to require undue experimentation to determine the placement of either

the controller or the tilt sensor within the structure.

A contrasting example of lack of enablement is found in In re Marquez, 738 F.

App’x 1012 (Fed. Cir. 2018). There the Federal Circuit affirmed the Patent Trial and

Appeal Board’s rejection of a patent application for lack of enablement. The patent

related to methods for creating artificial glands using membranes made up of cellular

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components. Id. at 1013, 1014. Because the application did “not provide guidance for

how to form cellular components into a membrane capable of surrounding a bio-

reactor” and its “only working examples of artificial glands use cells rather than cellular

components,” the court concluded that creating the artificial glands covered by

challenged claims would require undue experimentation and failed for lack of

enablement. Id. at 1014-15. That the ‘385 patent does not specify where in a structure the

tilt sensor is situated is a far cry from the undue experimentation required by the

invalid claims of In re Marquez. “ The placement of the tilt sensor is not an essential

element of the sensor’s operation, and the specification makes that plain.

Just like Day’s argument for indefiniteness, I find that the argument for lack of

enablement is unpersuasive, and certainly is not supported by clear and convincing

evidence (as no evidence is offered in support). With the detailed description of the

function of the tilt sensor in both the specification and Claim 1 of the ‘385 patent, the

indication that the tilt sensor can be located anywhere in the structure is not shown to

require undue experimentation to replicate the claimed invention. Days does not

establish that a person of skill in the art would be unable to make or use the invention

of Claim 1 due to the tilt sensor being “located anywhere in the structure.”

2. “Infer Jack Ground Contact” & “Detect Jack Ground Contact”

The next two disputed terms have common elements and are treated together by

the parties. Lippert’s patents call “jacks” what the Days’ patent calls the “legs” of the

leveling system. The ‘385 patent contains two claims that refer to the leveling system’s

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controller being “configured to infer jack ground contact.” The first of these is in Claim

7. It reads that the “controller is configured to infer jack ground contact based on

dynamic information received from the tilt sensor and indicating jack loading.” ‘385

patent, col. 17, ll. 44-46. The second is Claim 15’s reference to “the controller being

configured to infer jack ground contact based on tilt angle changes sensed by the tilt

sensor.”

The similar expression “detect jack ground contact” is used in three later claims

in these contexts:

• “the controller is configured to detect jack ground contact from a change in tilt

angle” (Claim 33, ‘385 patent, col. 21, ll. 14-16);

• “the controller being additionally configured to use signals from the tilt sensor to

detect jack ground contact” (Claim 34, ‘385 patent, col. 22, ll. 6-8); and

• “detecting jack ground contact through tilt sensor indications of a change in the

attitude of the structure resulting from jack ground contact” (Claim 35, ‘385

patent, col. 22, ll. 16-18).

The parties dispute the correct interpretation of “infer” or “detect” jack ground contact

within the meaning of these claims.

Days contends that the terms “infer jack ground contact” and “detect jack

ground contact” implicitly require a determination “that a jack has contacted the

ground by detecting a change in tilt angle of the structure.” [DE 59 at 15.] Days argues

that this interpretation is “consistent with the specification, which discloses a method of

inferring ground contact from changes in the tilt angle.” [Id.] Lippert would construe

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the disputed term more generally, to mean “determine that ground contact has been

made by the jack based on data received from the tilt sensor” without a limiting

reference to a change in tilt angle. [DE 60 at 17.]

First, I note that all 5 appearances of these related terms are in the context of the

function of the tilt sensor. So any construction of the disputed terms that incorporates

an explicit reference to the tilt sensor is inherently redundant. For instance, Lippert’s

proposed construction (in bold) would create a redundancy in Claim 7 to read:

“…configured to determine that ground contact has been made by the jack based on

data received from the tilt sensor based on dynamic information received from the tilt

sensor….” This redundancy requires rejection of Lippert’s proposed construction for

Claim 7. Apple, Inc. v. Ameranth, Inc., 842 F.3d 1229, 1237, 1238 (Fed. Cir. 2016) (a patent

claim should not be redundantly construed to include features already expressly recited

in the claim). On the other side, I can reject Days’ construction as to Claims 15 and 33

because Days’ language referring to “tilt angle” would be redundant and add nothing

to those two claims, which already expressly include the phrases “based on tilt angle

changes” (‘385 patent, col. 18, l. 37) and “from a change in tilt angle” (‘385 patent, col.

21, ll. 15-16), respectively.

Aside from these issues of redundancy, the parties’ dispute boils down to

whether, as Days contends, tilt angle changes should be read into the broader language

of Claims 7, 34 and 35. Days contends that the patent’s specification teaches no method

of determining ground contact other than from changes in the tilt angle. [DE 59 at 16.]

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To that point, Lippert cites portions of the specification teaching that other data besides

tilt angle may inform the controller’s determination that the jack has made contact with

the ground: “The adaptive filtering algorithm allows the controller 30 to recognize

ground contact by looking at specific output characteristics received from the tilt sensor

32. The output characteristics that the algorithm looks at are noise, rate of change, scale

factor and temperature.” ‘385 patent, col. 7, ll. 44-49. But the only algorithm disclosed in

detail in the specification measures tilt angle only, not these other “output

characteristics.” ‘385 patent, col. 6, l. 46-col. 7, l. 40.

Courts performing claim construction are “to rely heavily on the written

description for guidance as to the meaning of the claims.” Phillips, 415 F.3d at 1317. The

meaning of claim terms should be ascertainable by reference to the description of the

invention set forth in the specification, and the “terms and phrases used in the claims

must find clear support or antecedent basis in the description.” Id. at 1317-18, quoting

37 C.F.R. §1.75(d)(1). At the same time, claim language is to be given its ordinary

meaning and it is improper to impose a construction that would “add a limitation

appearing in the specification and the drawings, but not appearing in the unambiguous

language of the claim.” Gart v. Logitech, Inc., 254 F.3d 1334, 1343 (Fed. Cir. 2001). And

the Federal Circuit has repeatedly warned against limiting a claimed invention to a

preferred embodiment or to particular examples offered in the specification. See Varco,

L.P. v. Pason Sys. USA Corp., 436 F.3d 1368, 1375 (Fed. Cir. 2006) (and cases cited

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therein). These principles of claim construction defeat Days’ attempt to construe the

“jack ground contact” terms to be based only on detection of tilt angle changes.

The case cited by Days, Gentry Gallery Inc. v. Berkline Corp., 134 F.3d 1473, 1480

(Fed. Cir. 1998), actually appears to support Lippert’s position, in that it teaches that a

patent holder is entitled to claims as broad as the disclosure and the prior art allow, and

that a claim may be broader than the specific embodiment disclosed in the patent’s

specification. Here, the ‘385 patent describes a tilt sensor that reads characteristics other

than tilt angle to allow the controller to recognize ground contract. ‘385 patent, col. 7, ll.

44-49. Even in the absence of a detailed embodiment of such a tilt sensor, claims such as

7, 34 and 35, whose plain language does not limit ground contact recognition to tilt

angle, are not required to be so limited. Based on the plain language, I construe the

terms “infer jack ground contact” and “detect jack ground contact” as used in Claims 7,

15, 33, 34, and 35 to mean “determine that ground contact has been made by the jack.”

3. “Indicating Jack Loading”

Claim 7 of the ‘385 patent refers to the determination of jack ground contact

“based on dynamic information received from the tilt sensor and indicating jack

loading.” ‘385 patent, col. 17, ll. 44-46. Days argues that the term “indicating jack

loading” is invalid for indefiniteness, noting that the phrase does not appear in the

patent’s specification. [DE 59 at 16-17.] Both in Days’ briefing and at the Markman

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hearing, it became apparent that the challenge to the term is fundamentally

grammatical.

For starters, the fact that the term is not found in the specification is not critical to

its validity. So holds Univ. of Rochester v. G.D. Searle & Co.: “this court and its

predecessor have repeatedly held that claimed subject matter ‘need not be described in

haec verba’ in the specification to satisfy the written description requirement.[.]” 358

F.3d 916, 922-23 (Fed. Cir. 2004), quoting In re Smith, 481 F.2d 910, 914 (C.C.P.A. 1973).

Nor am I persuaded that the term “indicating jack loading” is indefinite because it

defies construction, as Days suggests, relying on Praxair, Inc. v. ATMI, Inc., 543 F.3d

1306, 1319 (Fed. Cir. 2008). “A claim will be found indefinite only if it ‘is insolubly

ambiguous, and no narrowing construction can properly be adopted…’” Id., quoting

Exxon Research & Eng’g Co. v. United States, 265 F.3d 1371, 1375 (Fed. Cir. 2001).

Acknowledging the slightly awkward syntax of Claim 7, I can readily construe

the language to clarify the intended meaning, by reading the term “indicating jack

loading” as a second modifier of “dynamic information,” along with the first modifier

“received from the tilt sensor.” In other words, the disputed portion of Claim 7 is

construed to mean “…based on dynamic information that is both received from the tilt

sensor and indicating jack loading.” As to the meaning of the words “indicating jack

loading,” I find that no construction is required, and Days does not specifically argue

that the phrase itself is ambiguous.

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4. “Pre-Selected Reference Value”

Claims 1 and 29 of the ‘385 patent refer to “the controller being additionally

configured to move a selected portion of the structure into a desired attitude by

commanding movement of the entire structure into an attitude where the tilt sensor

signals match a pre-selected reference value corresponding to the desired attitude of

the selection portion of the structure.” ‘385 patent, col. 17, ll. 14-20; ‘385 patent, col. 20, l.

63-col. 21, l. 4 (emphasis added). Days contends that the term “pre-selected reference

value” should be construed to mean “a sensor signal value chosen by the user or

installer.” [DE 59 at 18.] Lippert made clear at the Markman hearing that it is not

persuaded the term requires construction, and I agree. This is an instance in which “the

ordinary meaning of claim language as understood by a person of skill in the art may be

readily apparent even to lay judges, and claim construction…involves little more than

the application of the widely accepted meaning of commonly understood words.”

Phillips, 415 F.3d at 1314.

The “dispute” about this claim term is not really a challenge to the meaning of

the words used in the claim. Instead, Days’ proposal attempts to define how the

reference value is pre-selected, but Days fails to establish why that must be further

defined within the claim. As I indicated at the Markman hearing, I am unpersuaded that

the term “pre-selected reference value” requires construction. I conclude that as the

term is used in Claims 1 and 29, the term’s ordinary and customary meaning would be

readily understood by a person of ordinary skill in the art.

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5. “Dynamic Information”

By now this portion of Claim 7 is familiar: the “controller is configured to infer

jack ground contact based on dynamic information received from the tilt sensor and

indicating jack loading.” ‘385 patent, col. 17, ll. 44-46. Days challenges the term

“dynamic information” as indefinite, noting that the phrase does not appear in the

specification. For the same reason as before, I find that the term’s failure to appear in

the specification does not, without more, invalidate the term or the claim. Univ. of

Rochester, 358 F.3d at 923. But is the ordinary and customary meaning of the term

“dynamic,” as used in the context of Claim 7, readily understood by a person of

ordinary skill in the art?

In construing the term, I must start with the plain meaning of the words. I also

consider the context of the term within the claim and any help the specification

provides in understanding the term. In addition, “it bears remembering that all issued

patent claims receive a statutory presumption of validity” under 35 U.S.C. §282. CLS

Bank Int’l v. Alice Corp. Pty., 717 F.3d 1269, (Fed. Cir. 2013). See also Christy, Inc. v. United

States, 141 Fed. Cl. 641, 651 (2019). “Dynamic” is commonly understood (and would be

by those skilled in the art of designing or constructing a leveling system) as referring to

something that changes, or is changeable, as opposed to static or unchanging. And the

context in which “dynamic” appears in Claim 7 is information received from a sensor,

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which by definition has the ability to sense changes. So far, the plain meaning of the

term plus the context appear to yield a reasonably understandable meaning of the term.

What’s more, the specification offers confirmation of this conclusion. For

instance, the specification provides that “[w]hen the tilt sensor 32 is attempting to detect

ground contact during initial grounding of the levelers as shown in FIGS. 21 and 22, the

sensor 32 must be very sensitive to changes in movement.” ‘385 patent, col. 6, ll. 29-32.

Also “the controller 30…recognize[s] ground contact by looking at specific output

characteristics received from the tilt sensor 32” including “noise, rate of change, scale

factor and temperature.” ‘385 patent, col. 7, ll. 45-49. Operation of the controller is

described as “sens[ing] ground contact when it receives signals from the tilt sensor 32

indicating a change in tilt angle.” ‘385 patent, col. 9, ll. 40-41. These examples from the

specification provide additional support for a plain meaning construction of “dynamic

information” in Claim 7 as espoused by Lippert to mean “a change in information.”

“[T]he failure of the specification to specifically mention a limitation that later appears

in the claims is not a fatal one when one skilled in the art would recognize upon reading

the specification that the new language reflects what the specification shows has been

invented.” All Dental Prodx, LLC v. Advantage Dental Prod., Inc., 309 F.3d 774, 779 (Fed.

Cir. 2002). Days has not satisfied its burden of demonstrating Claim 7’s invalidity by

clear and convincing evidence. Microsoft Corp. v. I4I Ltd. P’ship, 564 U.S. 91, 95 (2011)

(quoting 35 U.S.C. §282(a)).

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6. “Selectively Extended”

The preamble to Claim 15 describes “[a]n assembly for correcting the attitude of

a structure by operating jacks that extend from the structure to contact a support

surface before being selectively extended to correct the attitude of the structure[.]” ‘385

patent, col. 18, ll. 23-26. Days contends that the term “selectively extended” must be

read to mean “extended in pairs.” [DE 59 at 19.] Lippert argues that the disputed term

has a plain and ordinary meaning and requires no construction, and that Days

improperly attempts to read a limitation from the specification into the claim. [DE 60 at

24-25.]

Initially, I observe that there is nothing about the phrase “selectively extended”

that connotes extension in pairs, as opposed to singly or in groups of 3 or more. Neither

does the plural “jacks” earlier in the preamble necessarily support Days’ construction.

There the context of “jacks” is the extension of presumably all legs initially “to contact a

support surface,” which occurs “before being selectively extended” to level the

structure as desired. The concept of selective extension suggests that fewer than all the

jacks may be extended, but implies nothing about the number of jacks selected for

further extension in the leveling process.

Days cites several portions of the specification in support of its preferred

construction of “selectively extended” to mean pairs of jacks. The first is the explanation

that “[t]he controller 30 levels a vehicle by extending the jacks in pairs parallel to

longitudinal pitch and lateral roll vehicle axes.” ‘385 patent, col. 5, ll. 61-63. Days also

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cites the specification’s description of the system’s automatic adjustment of vehicle

attitude if found to be out-of-level too long: “No individual leveler needs to be actuated

during this sequence, only pairs of devices are activated at any one time.” ‘385 patent,

col. 9, ll. 8-10. Lippert responds with citations of its own, to portions of the specification

expressly referring to extension of one jack at a time. “Each individual leveler is then

extended in the order (LF, RF, RR, LR) until each leveler contacts the ground” (‘385

patent, col. 9, ll. 42-44), and “[t]he controller 30 then activates the appropriate levelers in

a predetermined leveling sequence to adjust vehicle attitude until the vehicle is level”

(‘385 patent, col. 9, ll. 50-52.) The specification further describes: “The step of extending

each individual leveler is repeated for any other axis that requires leveling….” ‘385

patent, col. 10, ll. 9-11.

Because the specification does not disclose only extending jacks in pairs, as Days

contends, its construction of “selectively extended” to mean “extended in pairs” is

rejected. Instead, the term “selectively extended” as it appears in Claim 7 presents a

plain and ordinary meaning, namely that any number of the “operating jacks that

extend from the structure” may be extended as needed to correct the attitude of the

structure.

7. “Zero Mode” in Lippert ‘385 and Lippert ‘924 Patents

As was noted at the outset, the term “Zero Mode” is used in both the Lippert ‘385

patent (in Claims 26, 27 and 28), and in the Lippert ‘924 patent (in Claim 19). The most

complete description of the term is found in Claim 26 of the ‘385 patent and Claim 19 of

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the ‘924 patent: a “controller programmed to include a zero mode in which the

controller is ready to receive a signal that will instruct the controller to recognize signal

values being received from the tilt sensor as indicating that a selected portion of the

structure is in a desired attitude.” ‘385 patent, col. 20, ll. 26-30; ‘924 patent, col. 20, ll. 24-

29. Because the term is defined by this language within the claims themselves, I see no

need to impose any additional claim construction. The specifications of both patents

also reiterate definitional language virtually identical to that in these two claims. ‘385

patent, col. 3, ll. 29-33 and ‘385 patent, col. 13, ll. 31-35; ‘924 patent, col. 13, ll. 61-65.

The parties’ dispute over the term, both in their briefing and at the Markman

hearing, seems to fizzle in the face of this same recognition. Days’ proposal to construe

“zero mode” to mean “a condition of the controller in which it is ready to receive and

recognize a signal” is redundant of the more detailed definitional language in Claim 26

and Claim 19. No claim construction is required of the term “zero mode.”

8. “Analog Signal”

Claim 1 of the ‘385 patent describes “the tilt sensor being configured to provide

analog signals to the controller….” ‘385 patent, col. 17, ll. 11-12. The parties agree that as

used in Claim 1, “analog signals” are “output signals of the sensor.” [DE 59 at 20; DE 60

at 26.] Days proposes a further construction of “analog signal” to mean “output signal

of the sensor that is not a digital signal,” an interpretation that highlights the ordinarily

understood distinction between analog and digital signals. [DE 59 at 21.] Besides the

customary meaning of the word “analog” as used in Lippert’s Claim 1, Days cites the

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repeated use of the term “analog signal” seven times in the specification of the ‘385

patent. [DE 59 at 21-22.] The tilt sensor’s output of “analog” as opposed to digital

signals is a limitation that is clearly expressed in both the specification and the claim,

and Claim 1 is reasonably construed to mean what it plainly says. Further supporting

Days’ position is the prosecution history of the ‘385 patent, in which Lippert relied on

the invention’s use of analog signals to distinguish prior art that did not teach the use of

analog signals. [DE 59-1 at 109, 146, 149, 156, 199, 216.]

In opposition, the first point Lippert urges is that “analog” in the context of

Claim 1 distinguishes the signal format from that of a purely binary on/off “limit”

switch. That kind of switch is described in the specification as “digital”: “The tilt sensor

32 is used instead of limit type switches so that, instead of having the controller 30 wait

for digital inputs that indicate level state, the tilt sensor 32 continuously supplies analog

values to the controller 30.” ‘385 patent, col. 8, ll. 23-26. To my mind, this language from

the specification enforces the distinction between an analog and a digital output from

the tilt sensor, and confirms that, of the two types of signals, the tilt sensor supplies

analog values.

Lippert also points to the specification’s description of the preferred

embodiment, in which the analog signal output of the tilt sensor is “digitized” to be

transmitted to the controller in a format the controller can process: “The dual axis tilt

sensor 32 and the appropriate analog to digital converter hardware are shown in FIG.

4.” ‘385 patent, col. 15, ll. 25-26. Lippert contends that “[a] person of ordinary skill in the

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art would understand that the output analog signal produced by the proportional two-

axis tilt sensor would need to be conditioned into a digitized format so that the analog

values of the sensor output can be received and processed by the microcontroller.” [DE

58 at 3.] Lippert’s expert, Dr. Massoud S. Tavakoli, expresses the view that: “The

specification of the ‘385 patent teaches that the analog signal produced by the

proportional two-axis tilt sensor may be delivered to the microcontroller in a digitized

format.” [DE 58 at ¶9.] Even accepting these statements as true, they again reinforce

that the output of the tilt sensor is in analog format, not digital.

I accept Days’ construction of the term to mean “output signal of the sensor that

is not a digital signal” because it is supported by the plain and ordinary meaning of the

words “analog signal,” by the repeated references to the “analog” output of the tilt

sensor throughout the specification, and by the prosecution history of the ‘385 patent.

Lippert does not appear to dispute (nor could it, really) that the tilt sensor’s output is

correctly described as an analog signal.

One last thing: Although I agree with Days that Claim 1’s use of “analog signal”

must mean what it plainly says, I don’t agree, at least not at this stage of the

proceedings, that “Days’ proposed construction forecloses all digitization.” [DE 60 at

28.] Whether or not the signal produced by the tilt sensor is later digitized, or must be

digitized, for the invention to work is a matter that goes beyond construction of the

term “analog signal” as used in Claim 1. Whether the larger phrase “configured to

provide analog signals to the controller,” as construed to refer to output signals that are

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not in digital format, may encompass digitization occurring between the tilt sensor and

the controller is also beyond the scope of the claim construction dispute now before me.

ACCORDINGLY:

The disputed claim terms in the patents-in-suit are construed by the court as set

forth above.

SO ORDERED.

ENTERED: July 15, 2019.

/s/ Philip P. Simon

Philip P. Simon, U.S. District Judge

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